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Case Number

Letters Patent Appeal No. 14 of 1966

Attorney(S)

P.Rusia
Y.S.Dharmadhikari

Judges

P.V Dixit, C.J
A.P Sen, J.

Acts

Order 43, Rule 1 (j) and Section 47 of the Code of Civil Procedure
Order 21, Rule 90 and Section 47 of the Code of Civil Procedure.
Order 21, Rule 90 of the Code of Civil Procedure
Section 115 of the Code of Civil Procedure,
Section 47 of the Code of Civil Procedure
Order 21, Rule 90. Under Order 43, Rule 1(j)
Order 21, Rule 90 and Section 47
Clause (j) of Order 43, Rule 1
Rule 92 of Order 21
Order 43, Rule 1 (j).
Order 43, Rule 1 (i)
Order 21, Rule 90
Order 21, Rule 92

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Smart Summary

Structured Summary of the Opinion (Letters Patent Appeal)

Factual and Procedural Background

Execution proceedings were initiated on a money decree against the respondent-judgment-debtors, and certain property belonging to them was sold and purchased by the second appellant, Rajaram. The judgment-debtors applied under Order 21, Rule 90 of the Code of Civil Procedure and under Section 47 of the Code seeking to set aside the sale. On 5th February 1965 those applications were dismissed by the executing Court for default of appearance. On the same day the judgment-debtors moved to restore their applications under Order 21, Rule 90 and Section 47. The District Judge, Sagar, rejected the restoration applications by an order dated 11th February 1966. The judgment-debtors filed a revision petition in this Court which was summarily dismissed on 24th February 1966.

The judgment-debtors then preferred an appeal in this Court against the District Judge's order dated 11th February 1966. Tare J. dismissed that appeal on the ground that the appeal was not tenable in view of the prior summary dismissal (the revisional order) of the revision petition by this Court on 24th February 1966; despite holding the appeal not tenable, the learned Single Judge also expressed opinions on the merits, concluding that the District Judge was not justified in dismissing and refusing to restore the judgment-debtors' applications.

The decree-holder and the auction-purchaser (appellants in the present Letters Patent Appeal) appealed, asserting that although they agreed with the dismissal of the judgment-debtors' appeal, the learned Single Judge ought not to have commented on the merits after holding the appeal to be not tenable.

Legal Issues Presented

Whether an appeal lies against an order dismissing an application under Order 21, Rule 90 of the Code of Civil Procedure for default of appearance (or against an order dismissing an application for restoring such an application).
Whether such an appeal is competent under Section 47 of the Code of Civil Procedure.
Whether such an appeal is competent under Clause (j) of Order 43, Rule 1 of the Code of Civil Procedure (i.e., whether a dismissal for default or non-prosecution amounts to an order "refusing to set aside a sale" within that clause).
Whether the learned Single Judge was justified in expressing opinions on the merits of the District Judge's orders after concluding that the appeal was not tenable.

Arguments of the Parties

Decree-holder and Auction-purchaser (Appellants)

Their sole recorded grievance was procedural: although they were not aggrieved by the learned Single Judge's dismissal of the appeal brought by the judgment-debtors, they complained that having held the appeal not tenable, the learned Single Judge should not have gone on to express views on the correctness of the District Judge's orders (thereby opening the door for further proceedings by the judgment-debtors).

Judgment-debtors

The opinion records the actions taken by the judgment-debtors: they applied under Order 21, Rule 90 and Section 47 to set aside the sale; after dismissal for default they applied for restoration; after refusal by the District Judge they filed a revision petition and thereafter an appeal when the revision failed. The opinion does not set out detailed legal arguments pressed by the judgment-debtors within this text.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Keshardeo v. Radha Kishen, AIR 1953 SC 23	That an order of the executing Court restoring or not restoring proceedings (in the referred factual setting) does not relate to execution, discharge or satisfaction of a decree within the ambit of Section 47.	The Court relied on this Supreme Court decision to conclude that an appeal under Section 47 was not competent against orders dismissing or refusing to restore applications under Order 21, Rule 90.
Kashidhar v. Bhushanlal, Misc. S.A. No. 52 of 1957, D/- 30-1-1959 (MP)	Followed the principle in Keshardeo that no appeal under Section 47 lies against orders refusing restoration of applications under Order 21, Rule 90.	The Court regarded the view taken in this decision as correct and consistent with the Keshardeo principle and applied it to support the conclusion that Section 47 did not provide a right of appeal in such cases.
Kali Kanta Chuckerbutty v. Shyam Lal, AIR 1917 Cal 815	Held that the language of Order 43, Rule 1(j) is wide enough to cover dismissal for default of an application to set aside a sale, reasoning that dismissal effectively confirms the sale under Rule 92.	The Court recorded this as one line of authority but distinguished it from its own conclusion; it described the decision as part of conflicting precedent and did not follow it.
Narendra Nath v. Rakhal Das, AIR 1925 Cal 510	Followed the reasoning that dismissal of an application under Rule 90 has the effect of confirming the sale and is therefore appealable under Order 43, Rule 1(j).	The Court noted this decision as aligned with the Kali Kanta view but treated it as part of conflicting decisions which it ultimately did not follow.
Basaratulla v. Reazuddin, AIR 1926 Cal 773	Held that an order dismissing an application for default is not a confirmation of the sale, does not preclude a fresh application, and is not appealable under Order 43, Rule 1(j).	The Court endorsed Page J.'s reasoning in this case and treated it as persuasive authority for the proposition that dismissals for default are not "refusals" to set aside a sale and therefore are not appealable under Clause (j).
Basanta Kumar v. Khirode Chandra, AIR 1928 Cal 25	Page J. held that where an applicant's Order 21, Rule 90 application is dismissed for non-appearance and the opposite party is present and ready to contest, the order dismissing the application is an order under Order 43, Rule 1(j) and is appealable.	The Court noted this decision as exemplifying conflicting authority; it observed no principle distinction in its view between dismissal for non-appearance where one party is absent and where both are absent, and did not accept the broader appealability suggested by this decision as a general rule.
Ansarali v. Bhim Sankar, AIR 1929 Cal 407	Held that when an application under Order 21, Rule 90 is dismissed for default (whether one party or both absent) it is disallowed under Rule 92 and corresponds to refusal to set aside sale for purposes of Order 43, Rule 1(j), and is therefore appealable.	The Court recorded this decision as part of the conflicting Calcutta High Court line of authority but ultimately disagreed with treating all dismissals for default as appealable.
Rampratap v. Triloknath, AIR 1957 Pat 465	Patna High Court followed AIR 1928 Cal 25 and AIR 1929 Cal 407, holding that an order dismissing an application under Order 21, Rule 90 for non-prosecution is appealable under Order 43, Rule 1(j).	The Court mentioned this decision as another instance of conflicting authority and explained why such reasoning does not reconcile with its conclusion that dismissals for default do not amount to a refusal to set aside the sale for purposes of Clause (j).

Court's Reasoning and Analysis

The Court proceeded in the following analytical steps (expressed in the opinion):

The Court first accepted the procedural complaint of the appellants (decree-holder and auction-purchaser) that when a court finds an appeal to be not tenable it is unnecessary and inappropriate to express observations on the merits of the subordinate court's orders; such observations might invite further fruitless proceedings and should not influence the lower court.
The Court then considered the tenability of the appeal against the District Judge's order of 11th February 1966 refusing to restore the judgment-debtors' applications under Order 21, Rule 90 and Section 47. It stated that the learned Single Judge's view — that the appeal would have been competent but for the revisional order — was incorrect.
On the question of appeal under Section 47, the Court relied upon the Supreme Court decision in Keshardeo v. Radha Kishen (AIR 1953 SC 23) to the effect that orders like those in issue do not relate to execution, discharge or satisfaction of a decree within the ambit of Section 47; the proceedings are collateral and independent. The Court also cited and followed the view in Kashidhar v. Bhushanlal (MP High Court) consistent with Keshardeo. From this the Court concluded that no appeal under Section 47 lay against the orders in question.
With respect to appealability under Clause (j) of Order 43, Rule 1, the Court analysed the text and purpose of the clause and Rule 92 of Order 21. Clause (j) provides for an appeal from an order under Rule 92 of Order 21 "setting aside or refusing to set aside a sale." The Court emphasized that the word "refusal" presupposes a demand or request which the Court denies; when an application under Rule 90 is dismissed for default or not pressed, there is in fact no demand being determined on the merits and therefore no "refusal" within the meaning of Clause (j).
The Court reviewed conflicting authorities. Some decisions (e.g., Kali Kanta Chuckerbutty, Narendra Nath, Ansarali, decisions followed by Patna High Court) treated dismissal for default as equivalent to disallowance under Rule 92 and hence appealable under Clause (j). Other decisions (notably Basaratulla) held that dismissal for default is not a refusal to set aside the sale because the Court has not considered the substance. The Court found these authorities irreconcilable but agreed with Page J.'s reasoning in Basaratulla that dismissal for default does not amount to a refusal to set aside the sale.
On that basis, the Court concluded that an order dismissing an application under Order 21, Rule 90 for default, and an order dismissing an application for restoring such an application, are not appealable under Clause (j) of Order 43, Rule 1.
The Court further observed that dismissal for default is not without remedy: the executing Court may in the exercise of its inherent powers restore the application; if the executing Court refuses to restore, the litigant may seek relief by approaching the High Court in revision (the opinion refers to Section 115 of the Code of Civil Procedure in this context). The Court recognized the procedural avenue actually pursued by the judgment-debtors (application for restoration in the executing Court followed by a revision petition in the High Court).

Holding and Implications

Holding:

DISMISSED. The Letters Patent Appeal is dismissed.

Implications and consequences (as stated in the opinion):

The Court held that an appeal does not lie under Section 47 of the Code of Civil Procedure against an order dismissing an application under Order 21, Rule 90 for default of appearance, nor does an appeal lie under Clause (j) of Order 43, Rule 1 from an order dismissing such an application for default or from an order dismissing an application for restoring the original application under Order 21, Rule 90.
The Court resolved a conflict of authorities by adopting the view that dismissal for default is not a "refusal" to set aside a sale within the meaning of Clause (j) — because no demand is being disposed of on the merits when dismissal is for default — and therefore such orders are not appealable under Clause (j).
The opinion notes that the executing Court can exercise its inherent powers to restore a dismissed application; if restoration is refused, the remedy lies by way of revision to the High Court (the opinion refers to Section 115 in this regard). Thus, dismissal for default is not without remedy, even though an ordinary appeal under the cited provisions is not available.
Practical effect in the case: the appeal is dismissed and the parties are left to bear their own costs.

Note: This summary is strictly limited to the facts, reasoning and conclusions expressed in the provided opinion. No information has been added beyond what appears in the text.

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Gopilal And Another v. Sitaram And Others

1. The facts and circumstances in which this Letters Patent Appeal under Clause 10 of the Letters Patent against a decision of Tare J. has been filed are that in execution proceedings of a money decree against the respondent-judgment-debtors certain property belonging to the judgment-debtors was sold and purchased by the second appellant Rajaram Thereupon, the judgment-debtors filed applications under Order 21, Rule 90 of the Code of Civil Procedure as also under section 47 of the code for setting aside the sale. On 5th February 1965 those applications were dismissed by the executing Court for default of appearance of the judgment-debtors. Thereafter, on the same day the judgment-debtors filed applications for restoration of their applications under Order 21, Rule 90 and Section 47 of the Code of Civil Procedure. These applications were also rejected by the District Judge, Sagar, by an order passed on 11th February 1966. The judgment-debtors then filed a revision petition in this Court which was summarily dismissed on 24th February 1966.

2. The judgment-debtors then preferred an appeal in this Court against the order dated 11th February 1966 of the District Judge refusing to restore the judgment-debtors' applications under Order 21, Rule 90 and Section 47 which had been dismissed earlier for default of appearance. Tare J., who heard the appeal, took the view that in view of the dismissal by this Court on 24th February 1966 of the revision petition filed by the judgment-debtors against the District Judge's order dated 11th February 1966, the appeal preferred by them was not tenable. He observed:

"I might have been inclined to entertain an appeal, but for the revisional order passed by this Court"

On this view, he dismissed the appeal preferred by the judgment-debtors. In his order dismissing the appeal the learned Single Judge considered the question of the tenability of the appeal with reference to Order 43, Rule 1 (j) and Section 47 of the Code of Civil Procedure He also dealt at length on the question whether the learned District Judge was right in dismissing the judgment-debtors' applications under Order 21, Rule 90 and Section 47 for default of appearance and in refusing to restore those applications. In his opinion, the learned District Judge was not justified in dismissing the objection-petitions for default of appearance or in refusing to restore them.

3. The decree-holder and the auction-purchaser have now preferred this Letters Patent Appeal. They are not aggrieved by the conclusion of the learned Single Judge dismissing the appeal preferred by the judgment-debtors. Their sole grievance is that having held that the appeal preferred by the judgment-debtors was not tenable, the learned Single Judge was not justified in expressing any opinion on the correctness of the orders passed by the District Judge dismissing for default of appearance the judgment-debtors applications under Order 21, Rule 90 and Section 47 and in refusing to restore those applications and thus opening a door for further proceedings by the judgment-debtors for having those orders set aside.

4. There is considerable force in this complaint. The first question which the learned Single Judge had to consider was whether the appeal preferred by the judgment-debtors was competent or not. It was only after holding that the appeal was tenable that he could have entered into the merits of the orders passed by the learned District Judge. When he held that the appeal was not tenable, it was wholly unnecessary for him to make observations about the merits of the orders passed by the learned District Judge, especially when the correctness of the order dated 11th February 1966 passed by the District Judge was finally settled by the rejection by this Court on 24th February 1966 of the revision petition filed by the judgment-debtors. We have, however, no doubt that if the judgment-debtors, taking advantage of the purposeless observations made by the learned Single Judge, initiate in the lower Court any proceedings for having the orders of the District Judge dismissing the judgment-debtors' objection petitions for default of appearance and refusing to restore those petitions set aside, the Court shall in no way be influenced or overpressed by those observations and bear in mind the fact that the question of the dismissal by the District Judge of the judgment-debtors' objection petitions for default of appearance and his refusal to restore those objections is now concluded by the dismissal by this Court on 24th February 1966 of the revision petition preferred by the judgment-debtors.

5. It, however, seems to us unnecessary to say something about the tenability of the appeal preferred by the judgment-debtor against the order dated 11th February 1966. The view of the learned Single Judge that an appeal against that order would have been competent but for the revisional order passed by this Court is, with all due deference to him, not correct. An order dismissing an application under Order 21. Rule 90 for default of appearance or an order dismissing an application for restoring the original application under Order 21, Rule 90 is not at all appealable either under Section 47 or under Order 43, Rule 1 (j). So far as the tenability of the appeal under Section 47 is concerned, that to concluded by the decision of the Supreme Court in Keshardeo v. Radha Kishen, AIR 1953 SC 23. That was a case where execution proceedings had been dismissed in default and the decree-holder thereafter applied for restoration. The executing Court allowed the application and restored the proceedings. The Supreme Court held that no appeal lay against the order passed by the executing Court as the order of the executing Court did not relate to execution, discharge or satisfaction of a decree within the ambit of Section 47; the proceedings started by the decree-holder were in their nature collateral to the execution and independent of it. The decision of the Supreme Court was followed by this Court in Kashidhar v. Bhushanlal, Misc. S. A. No. 52 of 1957, D/- 30-1-1959 (MP), and it was held that no appeal under Section 47 of the Code of Civil Procedure was competent against an order of the executing Court dismissing an application filed by the judgment-debtor for restoration of his application under Order 21, Rule 90 dismissed earlier for default of appearance. The view taken by the learned Single Judge in the case of Misc. S. A. No. 52 of 1957, D/- 30-1-1959 (MP) (supra) is in our opinion, correct.

6. No appeal lies under Order 43, Rule 1(j) from an order dismissing an application under Order 21, Rule 90 or an order dismissing an application for restoring the application under Order 21, Rule 90. Under Order 43, Rule 1(j) an appeal lies from an order under Rule 92 of Order 21 "setting aside or refusing to set aside a sale". Now, when no application is made under Order 21, Rule 90 or where such an application is made and disallowed, the Court is required to make an order confirming the sale. If the application made is allowed, then the Court has to make an order setting aside the sale. When no application is made under Order 21, Rule 90, there is no question of appeal against an order confirming the sale. Clause (j) of Order 43, Rule 1 does not provide for an appeal against an order confirming the sale. Under that clause, an appeal lies against an order under Order 21, Rule 92 setting aside or refusing to set aside a sale. When an application under Order 21, Rule 90 is made, and is dismissed for default or is not pressed by the applicant, it may be taken for the purpose of Rule 92 of Order 21 that it has been disallowed and the result of disallowing is that the sale is confirmed But it cannot be held that when the application is dismissed for default of appearance or when it is not pressed then there is a refusal on the part of the Court to set aside the sale The word "refusal" means "a denial or rejection of something demanded or offered" There can be no "refusal" unless there is a request or demand When, an application under Order 21. Rule 90 is dismissed for default or when it is not pressed, there is no demand on the part of the person applying for setting aside the sale and the Court is not required to consider whether the sale should be set aside or not. Thus, when an application under Order 21, Rule 90 is dismissed for default of appearance and the sale is confirmed, there is no refusal to set aside the sale and such an order is not appealable under Order 43, Rule 1(j). A fortiori, an order dismissing an application for restoring the application under Order 21, Rule 90 dismissed for default of appearance is also not appealable.

7. On the question whether an appeal lies from order dismissing an application under Order 21, Rule 90 for default or from an order dismissing an application for restoring the application under Order 21, Rule 90, the decisions are conflicting. In Kali Kanta Chuckerbutty v. Shyam Lal, AIR 1917 Cal 815(2) it has been held that the language of Order 43, Rule 1(j) is wide enough to cover a case of an application to have a sale set aside dismissed for default. The reasoning given in this case was that the effect of such an order is to confirm the sale under Rule 92. But, as pointed out earlier, under Clause (j) of Order 43, Rule 1, an appeal lies against an order refusing to set aside a sale and not against an order confirming the sale. This decision was followed in Narendra Nath v. Rakhal Das, AIR 1925 Cal 510 where also it was ruled that the effect of the dismissal of an application under Rule 90 is to confirm the sale under Rule 92 and hence an appeal lies against the order. But in a later case, namely, Basaratulla v. Reazuddin, AIR 1926 Cal 773, it was held that an order of dismissal for default is not a confirmation of the sale and does not preclude the party from making a fresh application and that such an order is not appealable under Order 43, Rule 1(j). In that case Page J. observed that :--

". . . . .in dismissing the application for default when neither party appears on the case being called for hearing, the Court does not refuse to set aside the sale, but in the absence of the parties refuses to consider whether the sale should be set aside or not."

Page J. however, reached the conclusion in Basanta Kumar v. Khirode Chandra, AIR 1928 Cal 25 that where a person applies under Order 21. Rule 90 but the application is dismissed for his non-appearance and the opposite party is present and ready to contest, the order dismissing the application is an order under Order 43. Rule 1(j) and is, therefore appealable To us it seems that in principle there is no distinction between an order passed on an application under Order 21, Rule 90 dismissing it for default for non-appearance if one party and an order dismissing it for non-appearance of both the parties. The decision in AIR 1926 Cal 773 (supra) was not followed by the Calcutta High Court in Ansarali v. Bhim Sankar, AIR 1929 Cal 407(2). In that case it was held that when an application under Order 21.

Rule 90 is dismissed for default, whether for non-appearance of one or for non-appearance of both the parties, it is disallowed under Rule 92 and that it is the disallowing of the application under Order 21, Rule 90 which corresponds to the order refusing to set aside a sale within the meaning of Order 43, Rule 1(j), and, therefore, such an order is appealable. In our judgment, the expression ''where such an application is made and disallowed" occurring in Rule 92 means that where such an application is made and rejected. But it is not every order of rejection that has been made appealable under Order 43, Rule 1 (i) but only that Order of rejection by which the Court on a demand being made by a person to set aside a sale refuses to set aside the sale. This stands to reason as a party who has allowed his application to be rejected by default or for non-prosecution cannot really complain that the Court has refused to set aside the sale on a prayer being made by him. The Patna High Court has in Rampratap v. Triloknath, AIR 1957 Pat 465, following AIR 1928 Cal25 (supra) and AIR 1929 Cal 407(2) (supra), held that an order dismissing an application under Order 21, Rule 90 for non-prosecution is appealable under Order 43, Rule 1(j), the reason given being that if the application is disposed of on merits and is dismissed, the result is that the sale is confirmed; likewise if the application is dismissed for non-prosecution, the result is the same, namely, that the sale is confirmed. As we have stated earlier, the question of appealability under Order 43, Rule 1(j) does not depend upon whether the order under Order 21, Rule 92 results in the confirmation of the sale but on the fact whether the order is one refusing to set aside the sale or setting aside the sale. It is not necessary to note the decisions of other High Courts which are in similar vein. The reasonings given in these decisions, with all respect to the learned Judges deciding the cases, do not appear to us to be reconcilable with one another. We would respectfully say that Page J. rightly observed in AIR 1926 Cal 773 (supra) that when an application under Order 21, Rule 90 is dismissed for default, the Court does not refuse to set aside the sale. In our view, an order dismissing an application under Order 21, Rule 90 for default or an order dismissing an application for restoring the original application under Order 21. Rule 90 is not appealable under Order 43. Rule 1 (j).

8. It is not that a person whose application under Order 21, Rule 90 is dismissed for default has no remedy. Such a dismissal by the Court is in the exercise of its inherent powers and the application can be restored by the Court in the exercise of its inherent powers. If the Court on being moved to restore such an application refuses to do so, the party has the remedy of coming to the High Court in revision. It is a different question whether in any particular case the High Court would, in the exercise of its jurisdiction under Section 115 of the Code of Civil Procedure, interfere with the Order of the executing Court.

9. In the present case, the judgment-debtors followed the right course when they applied to the executing Court for restoration of their applications under Order 21, Rule 90 and Section 47 and then preferred a revision petition to this Court when they failed in their attempt to have the applications under Order 21, Rule 90 and Section 47 restored.

10. For these reasons, this appeal is dismissed. In the circumstances of the case, we leave the parties to bear their own costs.

Gopilal And Another v. Sitaram And Others

Structured Summary of the Opinion (Letters Patent Appeal)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Decree-holder and Auction-purchaser (Appellants)

Judgment-debtors

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gopilal And Another v. Sitaram And Others

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